Fair Housing – What’s Your Safe Harbor?

Compliance with the accessible design and construction requirements of the Fair Housing Act (FHA), a federal civil rights law, has significantly improved since the early 1990s when the regulations were promulgated. Unfortunately, a quick search of recent news articles will reveal that noncompliance with basic FHA requirements continues to be a problem in newly constructed multifamily projects nationwide. Owners, developers, architects, and others are still cited for noncompliance with the FHA’s seven design and construction requirements despite the fact that it has been approximately 30 years since those requirements went into effect.

Based on our experience, one of the contributing factors in continued noncompliance is the common misconception that following the accessibility requirements of a building code will result in compliance with the FHA. It is important to note that if the accessibility requirements of one of the ten HUD-approved safe harbors are not incorporated into the design of a multifamily development, and the project complies only with the accessibility requirements of a building code, then the risk of noncompliance exists.

Throughout the 1990s and early 2000s, many building codes fell far short of FHA compliance. For example, many developers in New York City relied on compliance with NYC’s Local Law 58 of 1987, believing that they would also be compliant with the Fair Housing Act. Unfortunately, this resulted in widespread noncompliance. LL58 permitted step up terraces and small bathroom layouts with inswinging doors, among other design elements that did not satisfy FHA compliance. The problem has certainly become less pervasive in more recent years as the ICC and local jurisdictions have become aware of shortcomings in their code requirements, but there are still some FHA criteria that have fallen through the cracks in even the most up-to-date building codes.

Clustered, single user restrooms are not exempt from FHA compliance despite exceptions in current versions of the IBC. As shown in this plan, using the FHADM as your safe harbor will allow a smaller footprint for the toilet room not covered by the building code

As a case in point, the International Building Code contains an exception that applies to clustered single-user toilet or bathing rooms. Per IBC Section 1109.2, Exception 3, “where multiple single-user toilet rooms or bathing rooms are clustered at a single location, at least 50 percent but not less than one room for each use at each cluster shall be accessible.” This exception is not found in any of the HUD-approved safe harbors for FHA compliance. Per the FHA Design Manual Page 2.4, Item 11, where common use toilet or bathing facilities are provided, “at least one of each fixture provided per room” is required to be accessible. Therefore, where multiple single-user restrooms are clustered together, every restroom must comply with FHA criteria.

Helpful Tip: Designers should note that because the FHA Design Manual (the safe harbor we most recommend) references A117.1-1986 as its technical standard, the 50% of toilet or bathing rooms not covered by building code may require a smaller footprint (e.g., 36” from water closet side wall to edge of sink rather than the 60” required by A117.1-2003 or later).

Page 2.4 of the Fair Housing Act Design Manual contains scoping criteria, including requirements for accessible fixtures in toilet and bathing rooms

Similarly, IBC Section 1109.2, Exception 4 states that “where no more than one urinal is provided in a toilet room or bathing room, the urinal is not required to be accessible.” However, because FHA requires at least one of each type of fixture per room to be accessible, if only one urinal is provided, it must still be accessible.

To ensure compliance with the accessible design and construction requirements of the FHA and the local code, be sure to comply with both. To avoid the risk of noncompliance, SWA recommends selecting one of the ten HUD-approved ‘safe harbors’ and applying it to the entire project. When weighing the requirements of the local code against those of the FHA, follow the most stringent criteria. By implementing this best practice, industry professionals will achieve compliance with the FHA regulations.

 

The ten HUD-approved safe harbors for FHA compliance include:

  1. HUD Fair Housing Act Accessibility Guidelines published on March 6, 1991 and the Supplemental Notice to Fair Housing Accessibility Guidelines: Questions and Answers about the Guidelines, published on June 28, 1994;
  2. HUD Fair Housing Act Design Manual;
  3. ANSI A117.1 (1986), used with the Fair Housing Act, HUD’s regulations, and the Guidelines;
  4. CABO/ANSI A117.1 (1992), used with the Fair Housing Act, HUD’s regulations, and the Guidelines;
  5. ICC/ANSI A117.1 (1998), used with the Fair Housing Act, HUD’s regulations, and the Guidelines;
  6. Code Requirements for Housing Accessibility 2000 (CRHA);
  7. International Building Code 2000 as amended by the 2001 Supplement to the International Codes;
  8. International Building Code 2003, on the condition that the ICC publish and distribute a statement that indicates that “the ICC interprets Section 1104.1, and specifically the exception to Section1104.1, to be read together with Section 1107.4, and that the Code requires an accessible pedestrian route from site arrival points to accessible building entrances unless site impracticality applies. Exception 1 to Section 1107.4 is not applicable to site arrival points for any Type B dwelling units because site impracticality is addressed under Section 1107.7”
  9. ICC/ANSI A117.1 (2003), used with the Fair Housing Act, HUD’s regulations, and the Guidelines; and,
  10. The 2006 International Building Code (loose-leaf format only)

For now, the only HUD-approved safe harbors are those listed above. Any IBC or A117.1 edition published after the 2006 IBC is not yet identified by HUD as satisfying the design and construction requirements of the Fair Housing Act. However, this may soon change. On January 15, 2020, HUD published a proposed rule to amend HUD’s FHA design and construction regulations to include reference to A117.1-2009. Additionally, they have also proposed to add the 2009, 2012, 2015, and 2018 editions of the International Building Code to the list of approved safe harbors. The proposed rule states that HUD has reviewed the updated editions of the IBC and found that “the accessibility provisions in these editions of the IBC are consistent with the requirements in the Act, HUD’s regulations, and the Guidelines.” This is great news for the building industry as it will help eliminate a lot of the confusion caused by contradictory requirements between FHA and building code criteria should this rule go into effect.

It is important to note that these changes have not yet been made and as such cannot be relied upon for projects currently under design or construction, but please stay tuned for updates on the approval process. In the meantime, before you embark on your next project, don’t forget to ask yourself, “What is my safe harbor?”

 

Written by:

 

Theresa D’Andrea, Senior Accessibility Consultant

 

 

 

 

Peter A. Stratton, Senior Vice President, Managing Director, Accessibility Services

 

 

 

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